(R v Secretary of State for the Home Department (Disclosure of Asylum Documents) [2019] EWHC 3147 (Fam)

Judgment has been handed down in the following reported case in which Bindmans’ family team represented the father. The judgment gives important guidance as to when disclosure from immigration proceedings can be disclosed in private law proceedings about children in the family court. The court considered the following question:  

Do the public interest policy and principles of asylum proceedings prevent the family court from ordering disclosure and inspection of documents into proceedings under the Children Act 1989?

The court determined that the answer was no: public interest policy principles would not prevent the family court from ordering disclosure of asylum documents within private law proceedings in an appropriate case.

Summary:

Within this ongoing case, the father sought disclosure of documents pertaining to the mother’s previous asylum claim, of which she was successful on appeal from the upper tribunal. The father submitted that the material was relevant, contemporaneous evidence that he should be entitled to rely on as part of the fact-finding process within private law proceedings, in order to challenge serious allegations made against him by the mother, which also formed part of her asylum claim. The mother refused to disclose the documents on the basis of confidentiality and the Secretary of State for the Home Department intervened and opposed disclosure on public interest grounds. The same issue in the current case was considered within previous proceedings pursuant to the 1980 Hague Convention and disclosure was originally refused: H (A Child) [2019] EWHC 1509 (Fam).

Mr Justice MacDonald found that whether disclosure and inspection is appropriate in private law proceedings within a given case will depend on the outcome of a balancing exercise that weighs the rights of each individual concerned (including third parties such as the Secretary of State), the welfare of the subject child and the confidential nature of the documents, including the wider public interest in maintaining public confidence in the asylum process. Within the context of this balancing exercise, it was acknowledged that the court would need to guard, in particular, the parties’ rights to a fair trial under Article 6 of the ECHR.

In the court’s judgment, existing provisions under FPR 2010 r 21.3 provided for a structured, clear and fair process for the court to consider whether or not to order disclosure of asylum documents belonging to a party to private law proceedings who asserts that those documents are confidential or private, but where the disclosure and inspection of those documents will also likely raise issues of public interest. The following procedural steps were flagged by the court at paragraph 77 of the judgment:

1. Where the party to private law child proceedings in possession of documents from the asylum process seeks to withhold disclosure (i.e. seeks to withhold from the other party to proceedings the fact of the documents existence) on the grounds that disclosure would damage the public interest then, unless the court orders otherwise, the party must make a without notice application for a non-disclosure order (FPR r 21.3(2)(a));
2. An application to withhold disclosure on the grounds that disclosure would damage the public interest must be supported by evidence (FPR r 21.3(7);
3. On an application to withhold disclosure on the grounds that disclosure would damage the public interest the court may require the production of the document(s) to the court to assist in the determination of the application (FPR r 21.3(6)(a)). Whilst the court will not require the production of the documents in every case, this rule makes clear that there will be cases in which the courts will only be able determination of the question of disclosure having seen the documents in issue;
4. On an application to withhold disclosure on the grounds that disclosure would damage the public interest, the court may invite any person, whether or not a party, to make representations (in cases concerning asylum documentation this is likely to be the Secretary of State for the Home Department) (FPR r 21.3(6)(b);
5. Where the party to private law proceedings in possession of documents from the asylum process seeks to withhold inspection (i.e. to prevent the other party seeing the document or part of the document the existence of which has been disclosed) on the grounds of confidentiality or privacy, that party must indicate to the other party (FPR r 21.3(4)) the right or duty claimed to withhold inspection and the grounds on which that right or duty is claimed (FPR r 21.3(3));
6. Where a party in possession of documents from the asylum process indicates to the other party to proceedings their intention to withhold inspection on the grounds of confidentiality or privacy one or other party may apply to the court to determine whether that claim should be upheld (FPR r 21.3(5));
7. An application to withhold inspection on the grounds of confidentiality or privacy must be supported by evidence (FPR r 21.3(7);
8. Where the court is required to determine a claim to withhold inspection on the grounds of confidentiality or privacy, again the court may require the production of that document to the court to assist in the determination of the application (FPR r 21.3(6)(a)). Whilst the court will not require the production of the documents in every case, again this rule makes clear that there will be cases in which the courts will only be able to determine the question of inspection having seen the documents in issue; 
9. Where the court is required to determine a claim to withhold inspection on the grounds of confidentiality or privacy, again the court may invite any person, whether or not a party, to make representations (in cases concerning asylum documentation this is, again, likely to be the Secretary of State for the Home Department) (FPR r 21.3(6)(b)).

Disclosure of the asylum material has been ordered to the court and the parties have been invited to give further supplementary submissions on the principles set out in the judgment which can be found here: R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam). The court will then decide whether some or all of the documents or parts thereof should be disclosed and inspected. Hannah Marshall of Bindmans’ family law team continues to represent the applicant father in this case.